FROM THE GOLDEN TEMPLE TO PUNJAB INDEPENDENCE
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FROM THE GOLDEN
TEMPLE TO PUNJAB
INDEPENDENCE
PRACTICAL AND POLITICAL ISSUES PERTAINING
T O A N O N - G O V E R N M E N T‑ E X E C U T E D
INDEPENDENCE REFERENDUM IN THE
IN DIAN - GOVE RN E D R EG ION OF PUNJA B
IRAI nº XIII MATT QVORTRUP
Report 3 (Eng.)
DANE WATERS
January 2021
From the Golden Temple to Punjab Independence
Practical and Political Issues Pertaining to a Non-Government-Executed Independence
Referendum in the Indian-Governed Region of Punjab
Matt Qvortrup
Dane Waters
IRAI nº XIII
Report 3 (Eng.)
January 2021
Editing: IRAI
Design and layout: Dany Larouche / infographie I-Dezign
© The Authors, 2021
All rights reserved
Cover picture: Thousands of Sikhs rally in London on 12 August 2018 to demand a referendum on
Punjab’s independence from India. © Sikhs for Justice
Institut de recherche sur l’autodétermination des peuples et les indépendances nationales
www.irai.quebec
info@irai.quebec
About the IRAI
Founded in the spring of 2016, the Research Institute on Self-Determination of Peoples and National
Independence (IRAI) is an independent and non-partisan research institute whose mission is to
carry out and disseminate research on all issues pertaining to the self-determination of peoples
and national independence. The IRAI thus strives to improve scientific knowledge and to foster an
open and constructive citizen dialogue on these themes.
The IRAI engages with both national and international issues and calls on experts from around
the world. These researchers conduct their work independently and follow a scientific approach.
The IRAI’s publications undergo a peer-review process.
The IRAI is a not-for-profit organization funded through donations from the public.FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................................................................... 3
ABOUT THE AUTHORS................................................................................................................................................. 4
INTRODUCTION ................................................................................................................................................................. 5
1. The Referendum as a Mechanism for Shifting Public Opinion............................................... 7
2. Practical Issues Pertaining to Referendums ....................................................................................... 9
3. Political Issues Pertaining to Referendums ........................................................................................ 15
CONCLUSION ....................................................................................................................................................................... 17
APPENDICES .......................................................................................................................................................................18
EXECUTIVE SUMMARY
The year 2021 could be marked by a referendum to Sikh nationalism and solidify popular support
on the independence of the Indian-governed for the movement.
region of Punjab. This non-government- This report outlines examples of successful
executed referendum would enfranchise not “unof f icial” referendums and draws up a
only the region’s current citizens, but also practical roadmap towards legitimacy and
members of the Sikh diaspora spread across international recognition.
the globe. Precedents in South Sudan, Eritrea, and
Independence referendums are of ten East Timor would strongly support letting the
labelled as “unofficial” by their opponents, as diaspora vote in a referendum held in a region
was the case in Catalonia and Iraqi Kurdistan in such as Punjab. Furthermore, given the historical
2017. Yet, many of these votes still achieve an underpinnings for the proposed referendum as
appreciable degree of success, for a referendum well as the political obstacles preventing such a
is not only a decisional tool, but also a political vote in India, Punjab Referendum 2021 would
lever. As such, a vote on the independence of be on robust legal and historical footing to
Punjab would help draw international attention be considered a legitimate, non-government-
executed referendum.
3FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
ABOUT THE AUTHORS
Matt Qvortrup
Matt Qvortrup, DPhil (Oxon.) is professor of Political Science at
Coventry University. Since 2016, he has been Joint editor of the
top academic journal European Political Science Review.
Described by the BBC as “the world’s leading expert on
referendums”, Professor Qvortrup is the author of several
books, including Referendums and Ethnic Conflict (2014) as well as
Government by Referendum (2018). Trained in both political science
and law, he has published over 40 peer-reviewed articles and more
than a dozen books on comparative politics and constitutional law.
Having served as head of section in the British Home Office,
Matt Qvor trup has also been a diplomatic envoy for the
US Department of State in Sudan. He served as the chief legal
advisor for the House of Commons Constitutional Affairs Committee and has recently been an
advisor to the British Foreign and Commonwealth Office. He has worked as a consultant in Australia,
Papua New Guinea, Colombia, Mexico, Sudan, Ethiopia, Denmark, and Spain, amongst other places.
Dane Waters
Dane Waters has worked on six continent s, prov iding
strategic advice to governments, activists, and NGOs. He
has also consulted on projects with the United Nations, the
US Depar tment of State and the International Republican
Institute. H a v i n g s e r v e d a s a p o l i t i c a l a p p o i n t e e i n
President George H. W. Bush’s administration, Dane Waters
has worked on five US presidential campaigns, as well as on
several foreign elections. He has worked on all concrete aspects
of direct democracy – from drafting the laws that govern an
election, to helping tip the balance on the ballot question, to
bringing together international observers to ensure adherence
to internationally accepted democratic standards.
Dane Waters is the founder and Chair of the Initiative & Referendum Institute at the University
of Southern California. He also serves on the board of Democracy International, an organization that
works to strengthen direct democracy around the world.
Dane Waters has authored and edited numerous articles and books on direct democracy.
He regularly appears in the international media to comment on governance issues.
4FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
INTRODUCTION*
In 2020, New Caledonia narrowly rejected The year 2021 could mark a turning point
independence: from 43 percent two years in the history of the Indian-governed state of
prior, support for the “yes” raised to nearly Punjab with the prospect of an independence
47 percent in this second referendum. In 2019, referendum emerging on the horizon. This
a 97-percent majority of voters in Bougainville referendum would not only call the region’s
decided to part ways with Papua New Guinea. current voters to the polls, but also members
These recent referendums are not unique. of the Sikh diaspora spread across the globe
In September 2017, both Catalonia and – many of whom still maintain close ties with
Iraqi Kurdistan asser ted their democratic their homeland. The Indian government does
will to become sovereign states. Meanwhile, not endorse this grassroots initiative, and
Puerto Rico held its sixth status referendum this since the Constitution does not provide for
last November, and formally voted to become referendums, it is still premature to speculate
the 51st US state, having dithered between on whether this non-government-executed
independence, statehood, and free association referendum on the independence of Punjab
for over 50 years.1 could succeed. Yet, such a vote may be
Not all independence referendums in the regarded as a peaceful means to addressing
past have followed constitutional provisions. the Sikhs’ interest in their own democratic self-
On occasion, polls of dubious legality have even governance.
succeeded in creating new states. In 1944, the There has already been discussion about
people of Iceland voted to sever all ties with their this possibility in academic papers. These have
Danish overlords, but did not strictly comply mainly pertained to the moral case for such a
with the applicable legal procedure.2 The same vote.3 The aim of this report is different. It looks
was true of a number of Yugoslav constituent not at the emotive appeal of a referendum but
republics in the early 1990s. The use of at the hard-nosed reality of law and politics.
independence referendums has since continued Is a referendum feasible, legal, and the right
to increase, as illustrated in Appendix 2. instrument to achieving the goals of the Sikhs?
*
This report was initially prepared at the request of Sikhs for Justice ahead of a referendum planned for 2020,
which was later postponed. The authors of this report take no position on the issue of the referendum as it
pertains to the reinstatement of the Indian-governed region of Punjab as an independent state. This report
is solely for the purpose of assessing the proposed referendum in light of historical and legal precedents.
1
See Kossi Biova Placide Lasmothey, “L’obstination indépendantiste en Nouvelle-Calédonie. En route vers
la dernière chance?” (2020) 45 Civitas Europea 405; Anna-Karina Hermkens, “The Bougainville Referendum.
From Holy War to Renewal?” (Georgetown Journal of International Affairs, 20 July 2020) https://gjia.georgetown.
edu/2020/07/20/the-bougainville-referendum-from-holy-war-to-renewal/ (22 December 2020); Daniel Cetrà,
Elisenda Casanas-Adam, and Mariola Tàrrega, “The 2017 Catalan Independence Referendum. A Symposium”
(2018) 27 Scottish Affairs 126; Bill Park et al., “On the Independence Referendum in the Kurdistan Region
of Iraq and Disputed Territories in 2017” (2017) 5 Kurdish Studies 199; Rashid Carlos Jamil Marcano Rivera,
“Puerto Rico Wants Statehood. But Only Congress Can Make It the 51st State in the United States”
(The Conversation, 14 December 2020) https://theconversation.com/puerto-rico-wants-statehood-but-only-
congress-can-make-it-the-51st-state-in-the-united-states-150503 (22 December 2020).
2
See Anthony Beauséjour, “Cases of Secession Since 1900 and Their Governing Constitutional Frameworks
Towards Secession. Empirical Paper Series on Secession and Constitutionalism. Part 2 of 2” (2020)
13 ICL Journal 237; Ágúst Þór Árnason, “Colonial Past and Constitutional Momentum. The Case of Iceland”
(2013) 8(2) Icelandic E-Journal of Nordic and Mediterranean Studies 1.
3
In a conference, Kaur argued: “Thus referendum 2020, an idea of Punjabi diaspora, is being seen as a
comeback of Khalistan movement and is surely going to be of certain impact on the lives of Punjabi residents.”
See Kiranpreet Kaur, “Referendum 2020. A View From Punjab”, in Pritam Singh, Muhammad Ali Jan, and
R. S. Mann (conv.), Thirty-Fifth International Conference of the Punjab Research Group Theme. Past, Present and
Future (Oxford School of Global and Area Studies, 27 October 2018).
5FROM THE GOLDEN TEMPLE Introduction
TO PUNJAB INDEPENDENCE
In response to these questions, one In addition, this report briefly touches upon
might contemplate either a consultative poll other related issues such as when referendums
or an actual referendum. The former is a more are won, whether they lead to conflict or to
informal, consultative exercise, which may be peace, and how referendums can be used to
regarded as an extensive opinion survey. By shift the political agenda.
contrast, this report will focus on the prospect In the following, the major policy issues
of a referendum, which is a more formal process pertaining to referendums are outlined using
whereby the people – the eligible voters – cast comparative legal and political examples and
actual ballots. Unlike a consultative poll, a best practice models. After each section follows
referendum is regarded as a true test of the a short comment in which the international
will of the people. It can bear upon a number experience is related to Punjab Referendum
of different issues ranging from a vote on 2021. The referendum is first looked at as a
additional autonomy (as in Wales in 2011) to a mechanism for engendering public support
ballot on independence (as in Scotland in 2014 and for changing the political agenda. Once
and New Caledonia in 2020). this has been done, the report moves on to
This repor t does not advise on the address legal and practical issues, such as what
desirability of a referendum, let alone on constitutes a majority, who drafts the question
independence. It merely outlines the conditions (and if this matters), as well as how votes are to
and best practices that must be met for a vote to be counted.
be recognized by the international community.
6FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
1. THE REFERENDUM AS A MECHANISM
FOR SHIFTING PUBLIC OPINION
Like most other political and legal phenomena, In a world where only sovereign nation-
referendums can be examined through different states seem to matter, referendums are often
lenses. On the one hand, a referendum can be an effective mechanism to raise international
part of a legislative process aimed at changing interest, as was the case in the Baltic countries
the state of the law on a given issue. On the and Yugoslav republics in the early 1990s. The
other hand, a referendum also has a symbolic votes alerted the world to their plight and gave
character. Irrespective of the outcome, a legitimacy to their claims to independence.
referendum can set the agenda and change The same is arguably the case for the
perceptions of a particular conflict or political 2017 referendum in Catalonia, which brought
development. Spain’s violent repression into the open. Without
Under ordinar y circumstances, both these referendums, it is unlikely that the world
governments and opposition groups take would have known of these countries’ aspiration
advantage of referendums to raise the profile for nationhood. In this sense, the referendum
of certain handpicked issues. By contrast, can be seen as an SOS call to the international
coalitions sometimes resort to referendums to community. Needless to say, this Mayday had
neutralize an intractable dissension within their dire consequences in the cases of Croatia and
own ranks. For example, parties in the British Bosnia and Herzegovina.
Cameron–Clegg coalition government agreed Some referendum campaigns seem
to disagree on electoral reform by holding a predes tined to hi t the headlines. T he
referendum in 2011 – which ended in a status referendums in the Baltic countries were
quo ante result.4 efficient because they were combined with
A referendum can be transformational, a high-profile media campaign and a ver y
and its success can be the impetus for a more engaged civil society. In August 1989, two million
disenfranchised community to take action. people holding hands to form a human chain
Yet, the case of a diaspora referendum for spanning 676 kilometres across all three Baltic
a large group in exile is novel and largely states provided for good television for the then
unprecedented.5 To determine its efficiency as recently established CNN.6 On a smaller scale,
regards putting an issue on the agenda, one has the vote organized by the East Cree First Nation
to extrapolate from past experiences. to oppose the 1995 Quebec referendum was
extensively covered in national Canadian media.7
4
Matt Qvortrup, “Voting on Electoral Reform. A Comparative Perspective on the Alternative Vote Referendum
in the United Kingdom” (2012) 83 The Political Quarterly 108.
5
One of the few instances of a diaspora referendum – if not the only one – is to be found in the 2009–2010
Sri Lankan Tamil independence referendum. See Upasana Unni, “Overseas Ballot. Canadian Tamils Vote
From Afar” (2010) 31(4) Harvard International Review 7; Tulika Gaur, “Role of the Sri Lankan Tamil Diaspora in
Conflict and Peace in Sri Lanka” (2015) 6 South Asian Journal of Diplomacy 85.
6
The same kind of demonstration was made in 2014 in Catalonia. See Sandrine Morel, “Une chaîne
humaine de 400 km pour une Catalogne indépendante” (Le Monde, 11 September 2013) https://www.
lemonde.fr/international/ar ticle/2013/09/11/une-chaine-humaine-de-400-km-pour-une-catalogne-
independante_3475443_3210.html (3 October 2020); Nathalie Lacube, “La Catalogne se mobilise pour
un référendum d’autodétermination” (La Croix, 11 September 2013) https://www.la-croix.com/Actualite/
Monde/La- Catalogne-se-mobilise-pour-un-referendum-d-autodetermination-2013- 09 -11-1013113
(3 October 2020).
7
Though one could even speak of an English-speaking media coverage disproportionate to the weight of
the referendum, as there were less than 5 000 East Cree voters. See Ronald Niezen, Defending the Land.
Sovereignty and Forest Life in James Bay Cree Society (2nd ed., Pearson, 2009) p. 95; Barry Came, “The Other
Vote. Natives Wage Their Own Campaigns” (Maclean’s, 23 October 1995) p. 22.
7FROM THE GOLDEN TEMPLE 1. THE REFERENDUM AS A MECHANISM
TO PUNJAB INDEPENDENCE FOR SHIFTING PUBLIC OPINION
By contrast, media interest for Tatarstan in opting out of the proposed plan for a new
1994 and Somaliland in 2001 hardly registered Scottish Assembly. While the referendum
at all, primarily due to the proponents of these was not binding and had no legal basis, it did
referendums not investing enough resources, strengthen morale and raise domestic and
time, and energy into a strategic communication international awareness of the issue. The same
plan. Of direct relevance to Punjab, the unofficial was true for the unofficial referendum held
referendum held among the Sri Lankan Tamil among the East Cree First Nation in 1995.
diaspora in 2009–2010 completely failed to In 2014, civil society groups organized
attract media attention. an informal vote on the independence of the
Even within a movement, referendums Italian region of Veneto. There was considerable
on high-profile issues are an excellent way to support for their demands and the poll – while
overcome differences and to create a united of no legal force – created a political momentum
sense of purpose. The quarrels over economic within society. Authorities were compelled to
policy within the Scottish National Party were take notice and, in 2017, organized an official
bridged when they stood united in fighting referendum on Venetian autonomy. Although
for independence. For a long time, the same this second referendum was not binding either,
was true of the Parti Québécois, which was 98.1 percent of voters favoured increased
the political flagship of all sovereigntists, autonomy, thus stating their expectations very
regardless of their “left-right” positioning. In clearly to both local and national governments.8
2014 the referendum on Scottish independence In light of the foregoing, a referendum
– although it was lost – helped to create a among the Sikh diaspora would likely be an
narrative for the Scottish National Party and effective mechanism. The movement could
propelled it to win over 50 percent of the votes gain an impulse, build its visibility worldwide,
in the 2015 UK general election. and force the issue unto the political agenda.
This bolstering effect is not unique to Before the matter gets to this point, however, a
“of f icial” polls. In 1979 the voters on the referendum would first require careful planning
Shetland Islands held a referendum on and consideration.
8
Arianna Giovannini and Davide Vampa, “Towards a New Era of Regionalism in Italy? A Comparative Perspective
on Autonomy Referendums” (2020) 8 Territory, Politics, Governance 579; Erika Arban, “The Referenda for More
Autonomy in Veneto and Lombardia. Constitutional and Comparative Perspectives” (2018) 10 Perspectives on
Federalism 242. In 2019, citizens of the city of Venice had their own local autonomy referendum, which was
lost because of a low turnout rate. See Rachel Sanderson, “Venice’s Bid for More Independence Fails After
Referendum Flop” (Financial Times, 2 December 2019) https://www.ft.com/content/2c045b78-1514-11ea-
9ee4-11f260415385 (3 October 2020).
8FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
2. PRACTICAL ISSUES PERTAINING
TO REFERENDUMS
A referendum on the future status of Punjab 2.2. Does an independence referendum call for
requires to address a number of important a special majority?
questions. These are: 2.3. Who should be allowed to vote?
2.1. When are referendums legally permitted in 2.4. Who should set the wording of the question?
domestic law?
2.1. The Legality of Referendums
Inasmuch as domestic law is concerned, it is the Constitution of India does not provide for
important to note that most independence independence and an agreement in this respect
referendums are illegal or ultra vires, to use the would require a referendum in the whole of
proper legal terminology.9 This section outlines India or a change of Bhāratīya Sa vidhāna – this
the legal bases for holding the referendum country’s Constitution.
under review. As will be seen, this vote is legally Yet, matters are rarely that simple. To
difficult, and the argument that majority ought to begin with, international law does not expressly
decide does not necessarily cut much legal ice. prohibit secession – nor does it provide for it
From an international law standpoint, it has either.12 Admittedly, all other things being equal,
been argued that, “there is no unilateral right to a region and a people only have a right to an
secede based merely on a majority vote of the independence referendum if the vote follows
population of a given sub-division or territory”.10 generally accepted rules and procedures.
Similarly, in his separate opinion in the advisory However, when a self-defined group of people
opinion of the International Court of Justice are part of an undemocratic constitutional
relating to Kosovo, Justice Yusuf opined that “a order, matters are a bit more complex. As
racially or ethnically distinct group within a State, Justice Cassese wrote:
even if it qualifies as a people for the purposes When the central au thori ties of a
of self-determination, does not have the right to sovereign state persistently refuse to
unilateral self-determination simply because it grant participatory rights to a religious or
wishes to create its own separate State”.11 racial group, grossly and systematically
For a non-governmental organization to hold a trample upon their fundamental rights,
proper independence referendum, internationally and deny them the possibility of reaching a
accepted rules and procedures must be followed. peaceful settlement within the framework
The general rule is that such a vote has to be held in of the state structure […] a group may
accordance with existing constitutional standards, secede – thus exercising the most radical
like those provided by Article 39(3) of the Constitution form of external self-determination – once
of Ethiopia, or following an agreement settled it is clear that all attempts to achieve
between the region and the central state, as in internal self-determination have failed or
the very different cases of Scotland in 2014 and are destined to fail.13
South Sudan in 2011. Basically, an oppressed people have a right
Following this logic, it would seem at first to hold a referendum on independence from
glance that the referendum held in Iraqi Kurdistan the oppressor state. To use the example of
in 2017 was plainly unconstitutional. Similarly, Kurdistan once again, as Iraq was not a well-
a referendum in Punjab would be illegal, as functioning democratic state, it could be
9
See Anthony Beauséjour, “Indivisibility and Secession Clauses in Current Constitutions and the Prevalence
of Secessionist Movements. Empirical Paper Series on Secession and Constitutionalism. Part 1 of 2” (2019)
13 ICL Journal 147.
10
James Crawford, The Creation of States in International Law (2nd ed., Cambridge University Press, 2006) p. 417.
11
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, 2010 ICJ Rep. 403, p. 622 (Yusul JICJ).
12
Id., p. 438.
13
Antonio Cassese, Self-Determination of the Peoples. A Legal Reappraisal (Cambridge University Press, 1995)
p. 119-20.
9FROM THE GOLDEN TEMPLE 2. PRACTICAL ISSUES PERTAINING
TO PUNJAB INDEPENDENCE TO REFERENDUMS
argued that Kurdistan met these criteria. But, confer legitimacy on the efforts of the Quebec
to use another example, given that Spain is government”.16
a democratic state, this rule hardly covered Needless to say, this ruling does not apply
Catalonia. Was the referendum in the Spanish in India directly. However, the Canadian example
Autonomia consequently illegal? It would be too suggests that other countries’ courts have
hasty to conclude so. Some might argue that shown flexibility and appreciation of nuances
the fact that Spain is a democratic State does that is conducive to compromises. Moreover,
not mean that Catalonia does not have a right many other aspiring independent states have
to secession: the appropriate criterion is rather used the Quebec case in support of their
that of internal self-determination. The Spanish argument for the right to self-determination.
Guarda Civil barging into polling stations, the While governments may confidently cite
mass repression, the suspension of Catalonia’s principles, the practice of independence
autonomy, and the criminal prosecution of most referendums – especially in terms of recognition –
members of the Catalan government could all seemingly owes more to national interest than
be raised in favour of the Catalan case. to adherence to principles of jurisprudence.
Again, matters may not be that simple. To For instance, the states of Western Europe
be sure, the Spanish courts have been adamant readily recognised the secession of several
that a referendum was ultra vires. Yet other former Yugoslav republics in the early 1990s,
courts in countries with similar disagreements although these new states did not adhere to the
have followed a different logic. aforementioned legal principles.
In its famous Reference Re Secession of The demand for a referendum is not
Quebec, the Supreme Court of Canada held just a legal matter but also a political one.
that “the rights of other provinces and the Indeed, several aspiring nations have held
federal government cannot deny the right of non-government-executed referendums on
the government of Quebec to pursue secession, independence, which strictly speaking were ultra
should a clear majority of the people of Quebec vires, but which nevertheless were recognised
choose that goal, so long as in doing so, Quebec by the international communi t y. While
respects the rights of others”. 14 The Court also recognition is not the norm, it is still noteworthy
opined that: that twelve out of thirty-six extraconstitutional
The clear repudiation by the people of referendums ended up being recognized.17
Quebec of the existing constitutional An “illegal”, “unofficial”, or “non-government-
order would confer leg i t imac y on executed” referendum can be successful. What
demands for secession, and place an matters is political persuasion.
obligation on the other provinces and the One of the arguments here is a political
federal government to acknowledge and one, namely trying to make a moral appeal to
respect that expression of democratic the international community. Such arguments
will by entering into negotiations and have become more common in political theory.
conducting them in accordance with Alan Patten argued that “on the simplest
the underlying constitutional principles version of the plebiscitary theory, victory in a
already discussed.15 referendum held in the secessionist unit on a
While secession could not be accomplished clear question about independence is sufficient
unilaterally, referendums were not deemed to generate a right on the part of that unit to
unconstitutional. Rather, these were regarded secede” .18 One of the authors cited a case for a
as a mechanism of gauging the will of the referendum when:
people of Quebec. Consequently, a referendum, (1) The citizens of the secessionist unit
provided it resulted in a “clear majority”, “would collectively have a valid claim to the territory
14
Reference Re Secession of Quebec, [1998] 2 SCR 217, par. 92.
15
Id., par. 88.
16
Id., par. 104.
17
Matt Qvortrup, “Independence Referendums. History, Legal Status and Voting Behaviour”, in Carlos Closa,
Constanza Margiotta, and Guiseppe Martinico (eds.), Between Democracy and Law. The Amorality of Secession
(Routledge, 2020) p. 144.
18
Alan Patten, “Democratic Secession From a Multinational State” (2002) 112 Ethics 558, p. 562.
102. PRACTICAL ISSUES PERTAINING FROM THE GOLDEN TEMPLE
TO REFERENDUMS TO PUNJAB INDEPENDENCE
of that unit; (2) the terms of secession Another, more recent scholar has gone
proposed by the secessionists are fair; (3) further and argued that, on moral grounds,
the creation of the new state is unlikely to “a community’s right to define itself and its
generate serious violations of standard territory is the […] moral heart of this new rule;
liberal rights, or to conflict with the realization the plebiscite is the engine. The plebiscite is the
of other standard elements of liberal justice; procedural and political expression of the right
(4) the citizens of the secessionist unit form – the way the community announces its claim
a group eligible for secession; and (5) the and constitutes itself as recognizable, legally
secession will not pose a serious threat to relevant unit”.20
peace and security.19
Related to Punjab Referendum 2021
It is clear that an independence referendum group, grossly and systematically trample
in Punjab would be ruled inconsistent with upon their fundamental rights”. 21 However, it
India’s current constitutional arrangements. is questionable if these abuses are perceived
However, given India’s less-than-shining by the international community to constitute
democratic record in recent times, a case breaches of the severity required. Given that
could be made that New Delhi does not have Freedom House ranks India as “free”, 22 – and
a strong case for preventing a vote that simply given the uneven adherence to this practice
ascertains the preference of the people. A vote of recognizing only referendums in non-
on independence is legally acceptable if the democratic states – this argument is unlikely to
sovereign power “persistently refuses to grant be supported by many.
participatory rights to a religious or racial
2.2. Special Majority Requirements23
Given the momentous impor tance of the the United Kingdom when James Callaghan’s
vote it seems reasonable that “if the approval Labour government’s proposal for Scottish and
rate of a referendum is too low, it ought to Welsh devolution was hindered by Labour MP
be discredited. A nearly simple majority does George Cunningham, who introduced an
not provide sufficient legitimacy”. 24 Without amendment to the effect that devolution had to
passing judgement as to the fairness of be supported by a majority of at least 40 percent
such a requirement, it is worth outlining a of the eligible voters. This meant that devolution
few comparative examples of when such in Scotland was rejected although a majority of
stipulations have been introduced. Turnout and the votes cast in the 1979 referendum were on
quorum requirements are relatively common the “yes” side.
in referendums on independence and other This type of obstructionism, albeit in a
referendums on ethnic and national issues. different setting, was also the motivation behind
Of course, this is not just a result of a Soviet leader Mikhail Gorbachev’s insistence
concern for fairness and democratic legitimacy. that a two-thirds majority should be required
In politics, opportunism and ulterior motives for secession of Soviet republics, a condition
are often presented in the guises of, what we that was largely ignored, notably by the Latvians.
might call, democratic appropriateness. Special An often-cited example is
majority requirements are no exception. This Saint Kitts and Nevis, in the Caribbean. Under
was arguably the case in the late 1970s in the Constitution, Nevis has considerable
19
Id., p. 562-633.
20
Timothy William Waters, Boxing Pandora. Rethinking Borders, States, and Secessions in a Democratic World (Yale
University Press, 2020) p. 126.
21
Cassese (n. 16).
22
“Freedom in the World 2020. India” (Freedom House, 2021) https://freedomhouse.org/country/india/
freedom-world/2020 (28 November 2020).
23
The terms “super majority”, “qualified majority”, and “special majority” will be used interchangeably.
24
Baogang He, “Referenda as a Solution to the National-Identity/Boundary Question. An Empirical Assessment
of the Theoretical Literature” (2002) 27 Alternatives 67, p. 77.
11FROM THE GOLDEN TEMPLE 2. PRACTICAL ISSUES PERTAINING
TO PUNJAB INDEPENDENCE TO REFERENDUMS
autonomy and has an island assembly, a a referendum, in accordance with Article 38.1(b)
premier, and a deput y governor general. of the Constitution.
Under cer tain specified conditions, it may After the Nevis Reformation Party blocked
even secede from the federation. the secession bill, Amory called elections for
In June 1996, the Nevis Island administration 24 Februar y 1997. Although the elections
under the Concerned Citizens’ Movement led produced no change in the composition of the
by Premier Vance Amory – a former all-round Assembly, the Premier pledged to continue his
international cricketer with a modest batting efforts towards independence. A referendum
average of 23.2 – announced its intention to was held in 1998, but only 61 percent voted
become independent. Secession required in favour of the proposition, and hence the
approval by two-thirds of the Assembly’s five referendum failed.25
elected members and by two-thirds of voters in
Related to Punjab Referendum 2021
While special majority requirements are often it is difficult to reject the verdict of a near-
introduced by those opposed to a particular unanimous electorate. It would be very unusual
policy, such requirements can be used to – and rather pointless – to have a super majority
great effect in areas where there is support in an advisory referendum, as the outcome has
for independence. It is easy to reject or ignore no direct legal effect.
the outcome of a narrow victory. However,
2.3. Who Should Be Allowed to Vote?
Who is a member of the demos? Who is a voter? exclusion of Montenegrins living in Serbia in the
Are you still a part of the demos if you leave the 2006 referendum. As the Court acknowledged,
country, or are you then merely a part of the however, “there is a clear trend in favour of
ethnos? European case law suggests those living allowing voting by non-residents, with forty-
outside a jurisdiction have thereby forfeited their four states granting the right to vote to citizens
right to vote. However, precedents from areas resident abroad”. 27 The same is true for non-
with displaced populations support the opposite. resident citizens of Australia, Canada, Japan,
Some European case law suggests that the New Zealand, and the United States, to name
diaspora is not entitled to vote. For example, in a few.
an obiter dictum in Matthews v. United Kingdom, Moreover, these cases differ considerably
the European Court of Human Rights found that from areas where civil war displaced large
“persons who are unable to take part in elections numbers of people, many of whom resettled in
because they live outside the jurisdiction” have the diaspora. As a result, non-resident voters
“weakened the link between themselves and the from Eritrea and from East Timor were allowed
jurisdiction”, and can consequently not claim a to vote in the 1993 and 1999 independence
right to vote.26 referendums. In both cases, the inclusion of
T his ruling was recentl y reinforced expatriates was, arguably, justified on account of
by Schindler v. United Kingdom, where the the displacement that took place due to violent
European Court of Human Rights held that “the conflict. The same was true – at least for those
margin of appreciation enjoyed by the state born before 1956 – in the case of South Sudan.
in this area still remains a wide one” and, as A very strong case can be made for including
a consequence, citizen of members states to those living abroad in referendums held in areas
the European Convention of Human Rights do that have experienced conflict.
not have a right to vote in national elections
and referendums. This might have justified the
25
Similarly to Saint Kitts and Nevis, tiny Tokelau also held two self-determination referendums with super-
majority requirements, which both failed to reach the required threshold. Given the small size of these
countries, however, their practice is unlikely to create a precedent or a binding norm of international law.
26
Matthews v. United Kingdom, (1999) 28 ECHR 361, par. 64.
27
Schindler v. United Kingdom, (2013) ECHR 423, par. 115.
122. PRACTICAL ISSUES PERTAINING FROM THE GOLDEN TEMPLE
TO REFERENDUMS TO PUNJAB INDEPENDENCE
Related to Punjab Referendum 2021
Punjab is not a monocultural state but a of those born after 1956, when Sudan became
territory with significant minorities. According independent from colonial powers. The
to the 2011 census of India, the state has a rationale for this rule was that people displaced
population of around 27.7 million. Of these, by war should be entitled to vote
16.0 million (or 58 percent) practice Sikhism, To depart from this general rationale would
whereas a significant minority of 10.7 million be inconsistent with precedents from countries
(or 38 percent) practice Hinduism. Therefore, that have experienced violence. The diaspora
there is a clear case that all expatriate Punjabis was allowed to vote in East Timor, Eritrea and
should be able to vote – not just members of South Sudan. Although Punjab is not currently
the Sikh diaspora, especially in this case where at war, it endured unspeakable repression
religious affiliations mirror ethnic and political and violence over the last few decades, and
preferences. its population still suffer the consequences. It
Those included in the diaspora should would be difficult not to follow this precedent
at least include first- and second-generation if a vote were held in Indian-governed Punjab
emigrants. One might also follow the precedent – and this is true for both constitutional and
of South Sudan and enfranchise all descendants independence referendums.
2.4. Do Biased Questions Affect the Outcome?
There has been a considerable debate about on Northern Ireland and set out in Command
the wording of the question on the ballot in Paper 3883?”28 In the end, 71.2 percent did.
referendums on independence. The Scottish There are several examples of similar
Government’s decision to include the word questions, which have not created a bias. For
“agree” in the proposed question on the ballot example, in 1999, in East Timor, the voters
in the 2014 referendum led to criticism that were asked the question: “Do you accept the
they were trying to influence the result by using proposed special autonomy for East Timor
positive language that could sway voters. within the Unitary State of the Republic of
The argument was – credibly enough – that Indonesia?”. A majority of the voters – close to
a biased and one-sided question could prompt 75 percent rejected the proposal with the result
the voters to vote yes to a question which that East Timor became independent. In this
they – had they understood it – would have internationally monitored referendum that value
rejected. This has always been a charge against laden word “accept” did not swing the voters.
referendums on divisive issues. But is it a real A similar conclusion could be drawn from
danger in referendums on independence? Will the referendum in Quebec in 1995. In this
the voters be swayed by rhetorical questions? referendum the voters were asked a question
Or is the question on the ballot of minor that included the word “agree”, namely, “Do you
importance, as the voters know the question agree that Quebec should become sovereign
from the debate? after having made a formal offer to Canada
It is difficult to answer this question with for a new economic and political partnership
any degree of mathematical certainty, but within the scope of the bill respecting the future
we can, perhaps, draw some conclusions if of Quebec and of the agreement signed on
we compare some of the recent examples of June 12, 1995?”. While the result was very close,
wordings in the referendums on independence the proposal was defeated by 50.1 percent,
held in peacetime in the past 20 years. and there was no indication that the wording
Referendum questions have come in many of the question swayed the voters. The citizens
shapes and sizes, from the blatantly biased had learned about the pros and cons of the
to the bland. In Northern Ireland, in 1998, the proposed “sovereignty” during the campaign.
voters were asked to approve (or otherwise) In both East Timor and Quebec, it seems
the rather neutral question “Do you support that an at tempt to hoodwink the voters
the agreement reached in multi-party talks
28
The Command Paper 3883 was a coded reference to the official document containing the Belfast Agreement
on power sharing.
13FROM THE GOLDEN TEMPLE 2. PRACTICAL ISSUES PERTAINING
TO PUNJAB INDEPENDENCE TO REFERENDUMS
to support a proposition by using positive “unity” and “separation”. However, on polling
language failed. day, any possible bias did not sway the voters.
So, what questions have been asked? Independence was supported by 99 percent
There is no standard format, but a quick look in a fair referendum monitored by the
at recent examples may be illustrative. In 2006 United Nations.
the voters in Montenegro voted 55.5–44.5 for These examples do not conclusively prove
independence by supporting the proposition that referendum questions have no effect on
“Do you want the Republic of Montenegro to be the outcome, but it is noteworthy that the
an independent state with a full international attempts to use positive language in both
and legal personality?” The question was drafted Quebec and East Timor – and to a lesser degree
with the help of the European Union. in South Sudan – failed to sway the voters in
Like in Montenegro, an international massive numbers. Needless to say, the results
committee drafted the question on the ballot on do not tell us anything about the motives of
Eritrean independence from Ethiopia in 1993. the individual voters. But we have no evidence
Having been advised by the United Nations, the from qualitative or quantitative research that
parties opted for the question “Do you want suggests that the question mattered, if anything
Eritrea to be independent?” the result in East Timor and South Sudan show
Another example of a simple question was that those who attempted to use value laden
provided by the UN-organised referendum in words went down to conclusive defeats.
South Sudan in 2011. In this referendum the In a for thcoming second edition of
voters – many of whom were illiterate – were Matt Qvortrup’s Referendums and Ethnic Conflict,
presented with two images and the text in both it is found that the wording of the question does
Arabic and English saying either “separation” not make a difference. Using a dummy variable
or “unity”. During the negotiations between for the presence of “emotive words”, like agree
the Sudanese government in Khartoum and or approve, there is no indication that phrasing
the pro-independence SPLM/A movement in has an impact on ballot results. This was also
South Sudan, the latter expressed reservations the conclusion in the first edition of said book.29
about the biased connotations of the words
Related to Punjab Referendum 2021
The international experience suggests that the wording matters. Given this perception, it is
question posed in a referendum does not affect advisable that those initiating the referendum
the outcome. Yet, this is not how the matter is should allow an unbiased international panel to
perceived. Many believe instinctively that the draft the ballot question.
29
Matt Qvortrup, Referendums and Ethnic Conflict (University of Pennsylvania Press, 2014) c. 7.
14FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
3. POLITICAL ISSUES PERTAINING
TO REFERENDUMS
When the referendum is held, two additional are only touched upon and a further analysis
questions need to be considered; when they is required. For policy purposes, however, the
are won and if they are conducive to a peaceful present analysis presents a starting point based
resolution of the issue. We will deal with both on the available evidence, which can inform
issues in turn. Needless to say, these issues policy makers.
3.1. When Are Referendums Won?
Given that most independence referendums years in office, a fact perhaps most clearly shown
were held in territories with less‑than‑impeccable in the Canadian referendum on an amendment
democratic records, it is difficult to establish to the Constitution in 1992, in which Prime
what determines the outcome of a referendum. Minister Brian Mulroney’s personal disapproval
But if we broaden the category to include rating was one of the determining factors.
referendums on autonomy and devolution there H o w e v er, i t sh o ul d b e n ote d t ha t
seems to be a tendency that voters are more Milo Đuk anov ić , the prime minis ter of
inclined to support propositions if: Montenegro, had ser ved as premier since
1. They are in favour of the proposition; and 1991 when he succeeded in winning the
2. The government proposing the change independence referendum in 2006. The
or the secession has been in power for a main factor behind winning an independence
relatively short period of time.30 referendum is the voters’ support for the
In other words, it is easier to win a referendum proposition, which was won by a 55– 45
on independence during the honeymoon period margin. Given these factors, it was perhaps not
immediately after an election – something surprising that the Scots rejected independence
proved perhaps by the devolution referendums in 2014 – though it should be stressed that the
in Britain in 1997 and 1998. SNP achieved a considerable feat in almost
Conversely the longer you have been closing the gap. At the risk of simplif ying
in office the greater the risk of losing the matters, the nationalist lost the referendum,
referendum. Why is this? One possible and but they won the campaign.
credible explanation was advanced by an T hose contemplating a referendum
American political scientist who observed, “to need to bear these difficulties of winning a
govern is to antagonize”.31 All governments break referendum in mind. Losing a referendum is a
promises, fail to deliver and enact unpopular setback that can all but eliminate aspirations of
laws. A referendum can be a proxy for a vote on independence. A referendum is a risky strategy
the record of the government. Hence, a no vote and should only be used when the initiator is
in a referendum is often a positive function of the certain to win.
30
See Matt Qvortrup (ed.) Referendums Around the World. The Continued Growth of Direct Democracy (Palgrave,
2017) p. 34.
31
V.O. Key Jr., The Responsible Electorate. Rationality in Presidential Voting. 1936–1960 (Vintage Books, 1968).
15FROM THE GOLDEN TEMPLE 3. POLITICAL ISSUES PERTAINING
TO PUNJAB INDEPENDENCE TO REFERENDUMS
3.2. Do Referendums Lead to Conflict?
This leads us to the other issue, which is of Needless to say, this does not prove that
particular importance in India. Given the history referendums are conducive to peaceful political
of conflict, the question is if a referendum is divorce settlements. To render this conclusion
conducive to peaceful settlement of the political plausible a larger and more systematic study
issue. is required. If we use the cases of secession
A s was shown in the case of Bosnia, between 1900 and 2010, we find that 44 of
referendums on independence have sometimes the 60 secessions or secession attempts
resulted in civil war and conflict. Yet, at other were preceded by referendums. Of those
times the political split has been amicable. 44 referendums, war broke out in six cases. In
Although many cite the example of the former other words, secession was achieved peacefully
Yugoslavia, independence referendums have in 38 (86 percent) of these cases. Examples
rarely resulted in wars. To give one example, in such as Bosnia and East Timor are exceptions
Aleksandar Pavković and Peter Radan’s much to the rule, and in the case of the latter, conflict
cited Creating New States, the authors use six predated the referendum
case studies to uncover the logic of secession; All this is not to say that referendums are
three violent secessions or session-attempts unrelated to conflict. The referendum is a blunt
(Biafra, Bangladesh and Chechnya) and three instrument and a narrow win can drive the losing
peaceful ones (Norway, Slovenia and Quebec).32 side to desperate measures – as was the case in
Interestingly, the former three all have one Bosnia in the 1990s and in Northern Ireland in
thing in common: no referendum was held. the early 1970s.
Conversely referendums were held in the latter
peaceful examples.
32
Aleksandar Pavković and Peter Radan, Creating New States. Theory and Practice of Secession (Ashgate, 2007).
16FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
CONCLUSION
A referendum is not just a legal mechanism for • Independence referendums are
approving or rejecting legislation. A referendum generally inconsistent with constitutional
is also a symbolic tool that can be used to raise and international law except when a
the public profile of an issue. While there are no government “persistently refuses to grant
previous examples of referendums held exclusively participatory rights to a religious or racial
in a diaspora it is possible to extrapolate from group, grossly and systematically trample
earlier national referendums and, based on this, upon their fundamental rights”. If the
to draw up a roadmap for holding a referendum latter is the case, there is a legal case for
among Sikhs living outside India. an independence referendum in Punjab.
Unof f icial referendums can be used • Most referendums have been held in
to highlight an issue, as the cases of the countries with relatively weak democratic
Baltic countries demonstrated in the early institutions. The huge “yes” majorities
1990s. Not all referendums achieve this. The often recorded could suggest that the
Baltic votes were successful because they were votes are not always free and fair. But in
accompanied with highly publicised events. the few independence referendums that
Conversely, the independence referendums in have been held in democratic countries,
Somaliland and Tatarstan did not, and attracted it seems that governments have tended
virtually no media attention. to win the plebiscites if they have taken
Even referendums that do not capture office recently and only if there is broad
international headlines can have the effect of popular support for independence before
strengthening morale. This was the case in the the campaign.
unofficial referendum among the East Cree in • Referendums have on occasion resulted
Quebec in 1995. Despite the result having no in the exacerbation of ethnic conflict,
legal effect, the vote created a sense of unity of such as in Bosnia and Herzegovina and in
purpose among this particular demographic. A East Timor. However, referendums are not
similar effect could be expected among the Sikhs in most cases correlated with civil war. War
in the diaspora, not least if this vote is billed as resulted in only 14 percent of cases and
“historical”, “path-breaking”, and a novelty. hence, referendums can often be seen as
Having addressed several practical, political a peaceful solution to a politically divisive
and legal issues, the main conclusions are as issue.
follows: In summation, given the historical reasons
• International practice and precedents in put forward to organize an independence
comparable countries dictate that those referendum in the Indian-governed region of
living in the diaspora should be given a vote. Punjab, in conjunction with the political realities
To depart from this would be inconsistent within India blocking the holding of such a
with precedents from countries that have vote, Punjab Referendum 2021 is on strong
experienced violence. The diaspora was legal and historical footing to be considered a
allowed to vote in East Timor, Eritrea and legitimate (though non-government-sanctioned)
South Sudan. It would be difficult not to referendum.
follow these precedents if a vote were held Following the vote, however, post the
in India and in Punjab. elec tion, it is incumbent on the Indian
• An impartial committee or a committee government to respect the outcome of the
representing both sides of the argument referendum and act accordingly. Conversely,
should decide the wording of the question. it is just as important that the proponents of
However, this might be difficult as the Punjab Referendum 2021 accept the outcome
opponents are unlikely to be co-opted into of the referendum as well.
such a committee.
17FROM THE GOLDEN TEMPLE
TO PUNJAB INDEPENDENCE
APPENDIX I
THE HISTORY OF INDEPENDENCE REFERENDUMS
The first referendums on independence were to appoint a government that had a majority in
held in the Confederate States in America in the Stortinget, the Norwegian legislature.
the early 1860s. At this stage the referendum But although the principle of self-
was already a deep-seated part of political determination of the people was much espoused
life. The first referendum in America was held in the wake of the First World War – especially
in 1788 in Massachusetts, when voters were by US president Woodrow Wilson who had
consulted on whether they wanted to give up campaigned for the use of more referendums
their independence and join the newly minted in America while he was governor of New Jersey
United States. By the mid-1850s it had become – no referendums were held on independence
commonplace to consult the citizens in major for the newly established countries (e.g.
issues of constitutional importance. It was Czechoslovakia or Yugoslavia) or the secession
natural, therefore, that Texas, Virginia, and of states from established ones (e.g. Hungary
Tennessee submitted the decision to secede from and Finland). To be sure, there were several
the Union to the voters in 1860. What is perhaps referendums on the drawing of borders in
interesting is that the support for secession Europe, e.g. in Schleswig and in Tyrol in 1920.
was not unanimous. In Tennessee, for example, But referendums on outright independence
104,019 voted for secession while 47,238 voted were not held, and the leading scholars of
against, and in Texas the figures were 34,794 international law were generally sceptical of
for and 11,235 against. We do not have figures them. L.F.L Oppenheim, arguably the most
for Virginia. These were not endorsements of prominent international legal mind at the time,
epic proportions. The less‑than‑unanimous concluded that “it is doubtful whether the law
support perhaps suggested the Dixie voters did of nations will ever make it a condition of every
not endorse the nuclear option favoured by the cession that it must be ratified by a plebiscite”.33
confederate elites. In the period between the two world wars,
After the American Civil War referendums only two referendums were held. One in 1933,
on independence were almost forgotten. To be on whether Western Australia should secede
sure, there were debates about plebiscites to from Australia, another in 1935, on whether the
resolve the border dispute between Denmark Philippines should become independent from
and Germany, but these came to naught. It took the United States. In the former, a majority voted
a full 45 years before the next referendum on for independence, but as the National Party,
independence was held, in this case, a vote on which campaigned for independence, lost the
whether Norway should secede from Sweden, election held on the same day, nothing came of
supported by more than 99 percent in 1905. it.34 In the latter case, a successful referendum
In the Norwegian case the referendum was was held on a new independence Constitution
the brainchild of Norwegian Prime Minister after the Philippine Congress had rejected the
Christian Michelsen, who wrong-footed the US Congress’ Hare‑Hawes‑Cutting Act, which
Swedish unionist elite by calling a surprise granted independence for the erst while
referendum after the Swedish king had refused overseas dependency.
33
L.F.L. Oppenheim, cited in Johannes Mattern, The Employment of the Plebiscite in the Determination of Sovereignty
( Johns Hopkins University Press, 1921) p. 195.
34
Thomas Musgrave, “Western Australian Secessionist Movement” (2003) 3 Macquarie Law Journal 95.
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